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Muller v. Muller

Decided: March 7, 1986.

JUDITH ANN MULLER, PLAINTIFF,
v.
KENNETH ROBERT MULLER, DEFENDANT



Krafte, J.s.c.

Krafte

This is a post-divorce Uniform Reciprocal Enforcement of Support Act, N.J.S.A. 2A:4-30.24, et seq., Revised 1968, proceeding, hereinafter referred to as URESA, between residents of Florida (mother and child) and a resident of New Jersey (father), addressing support in a "held" account and visitation.

Factually, we find that the parties to this action were divorced by Florida decree in 1975. Incorporated in the Final Judgment

was the parties' Property Settlement Agreement, which granted custody of their then two year-old son to plaintiff-wife, and reasonable rights of visitation to defendant-husband. Thereafter, defendant moved to New Jersey, and a URESA order was entered in this State in 1977, requiring child support payments to be made through the Bergen County Probation Department. Plaintiff and the infant child continue to reside in Florida.

In 1983, plaintiff filed a petition for an increase in child support under URESA. The resulting order of April 23, 1984, for reasons unknown to this Court, failed to directly address plaintiff's request. Instead, the order required that all future child support payments to plaintiff be suspended and placed in a "held" account pending effectuation in this State of defendant's visitation with the child. When the matter came on for review in November 1984, the existing order and "held" account were continued. No subsequent order has been entered, and plaintiff alleges that as of October 10, 1985, the "held" account totals $2,310. and is current.

It is undisputed that the child, now 13, has not seen his father since 1979, some five to six years. Defendant alleges that plaintiff thwarts his every attempt at visitation. He seeks visitation in New Jersey on the basis that it would be ineffective in Florida, in such close proximity to plaintiff. Denying any interference with defendant's visitation rights, plaintiff asserts that defendant makes no effort to see the child in Florida, and that the child does not wish to visit his father in New Jersey.

What is actually before this Court is plaintiff's motion to vacate the visitation order and release the support monies maintained in the "held" account. Initially, plaintiff disputes the jurisdiction of the New Jersey court to have entered the 1984 order and poses two queries: (1) whether the court had jurisdiction to enter a visitation order in the context of a support enforcement proceeding brought pursuant to URESA, and (2) whether New Jersey or Florida has jurisdiction over

questions of custody and visitation pursuant to the requirements of the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-28, et seq. (UCCJA).

It is plaintiff's position that, in the context of a URESA proceeding, the receiving court lacks jurisdiction to order visitation. She claims that support and visitation obligations are mutually independent. Although she disavows interference with visitation, she argues that denial of visitation rights does not confer jurisdiction on the court to suspend support. Plaintiff asserts that to permit consideration of visitation issues in a URESA hearing places an undue burden on the enforcement agencies charged with implementing the act: They would be forced to track visitation as well as support records. Finally, with respect to the UCCJA, plaintiff argues that Florida, and not New Jersey, is the "home state" of the child wherein jurisdiction lies to modify visitation.

Defendant asserts that there is no limitation on the court's equity powers to enter a visitation order in a support proceeding. He claims that, although the general rule is that support and visitation obligations are not interdependent, there are exceptions to the rule when the welfare of the child mandates his "getting to know, love and respect both parents." It is further urged that the entire controversy doctrine is violated if the New Jersey court is found to have lacked jurisdiction to enter the order, inasmuch as such a finding would compel defendant to institute multiple proceedings to enforce his rights. Defendant also resists plaintiff's application on the ground that, having failed to timely appeal the 1984 order, she cannot now ask this Court to act in effect as an appellate court and vacate the order of another trial court. Finally, with respect to the UCCJA, defendant urges that said act must be read in pari materia with URESA and prior case law of this State, to the end that interstate visitation issues may be addressed in a URESA proceeding.

I. JURISDICTION TO ENTER A VISITATION ORDER IN A URESA PROCEEDING.

Initially this Court addresses the issue of whether a responding court has jurisdiction in the context of a URESA proceeding to enter a visitation order. For purposes of this limited analysis, and to narrow the issue, it will be assumed that New Jersey is the "home state" within the meaning of the UCCJA, such that it would have jurisdiction under that statute to enter or modify a visitation order. The narrow question here is whether issues of visitation and custody can be raised as a defense in a support enforcement proceeding, irrespective of any interstate conflict under the UCCJA.

Plaintiff relies on two sections of URESA for the proposition that a court is without authority to enter a visitation order in a support hearing. First, N.J.S.A. 2A:4-30.26(e) defines "obligee" as:

a person including a state or political subdivision to whom a duty of support is owed or a person including a state or political subdivision that has commenced a proceeding for enforcement of an alleged duty of support or for registration of a support order. . . . [Emphasis supplied.]

The act then provides, at N.J.S.A. 2A:4-30.45:

the determination or enforcement of a duty of support owed to one obligee is unaffected by any interference by another obligee with rights of custody or visitation granted by a court.

Inasmuch as the definition of an obligee includes both plaintiff (as a person who has commenced a proceeding to enforce support) as well as the child (as a person to whom a duty of support is owed), plaintiff asserts that funds owed to the son cannot be withheld because of alleged interference by the mother with visitation.

Second, plaintiff relies on N.J.S.A. 2A:4-30.54, which provides:

Participation in any proceeding under this act does not confer jurisdiction upon any court over any of the parties thereto in any other proceeding.

It is plaintiff's position that, had the divorce been obtained in New Jersey, then arguably this State would retain jurisdiction over the marital res and could address other matrimonial issues.

However, since the state of original jurisdiction was Florida, and both plaintiff and the child have continuously remained Florida residents, she claims that the above provision precludes this Court from ...


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